Charitable Immunity Case Outline

Three prong test to determine if Charitable Immunity Act is applicable:

1) the entity is a non-profit;

2) was organized exclusively for religious, charitable or educational purposes; and

3) was promoting such objectives and purposes at the time of the injury. 

 

Prong three is further broken down to determine a party is a beneficiary of the “works” of a charity, under the Charity Immunity Act:

(1) the institution pleading the immunity, at the time in question, was engaged in the performance of the charitable objectives it was organized to advance, and

(2) the injured party must have been a direct recipient of those good works.

Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 815 A.2d 419 (2003).

 

Courts have a broad interpretation of function “although a church's main purpose may be to provide a place of worship and spiritual guidance, [its] function is not so narrowly confined. It is not limited to sectarian teaching and worship. In [the] modern view, exercises designed to aid in the advancement of the spiritual, moral ethical and cultural life of the community in general are deemed within the purview of the religious society. A social center is now commonly regarded as a proper adjunct of the local church-conducive to the public good, as well as advantageous to the congregation.”  Loder v. St. Thomas Greek Orthodox Church, 295 N.J. Super. 297, 302, 685 A.2d 20, 23 (App. Div. 1996).

However, the Court limits function in Beicht v. American Polish Veterans, Inc., the renting of a space for a bridal shower was “unrelated” and the entity was not protected by the Charitable Immunities Act. When the organization makes its premises available for an activity unrelated to such an undertaking, it is not functioning within the parameters of its immunity.”  Beicht v. Am. Polish Veterans, Inc., 259 N.J. Super. 79, 81, 611 A.2d 168, 169 (Ch. Div. 1992). In Beicht v. Am. Polish Veterans, 259 N.J.Super. 79, 82 (Law Div.1992) (denying charitable immunity to a fraternal organization because “[f]raternal societies or those organizations whose purpose is to promote the welfare of their members are benevolent, but not charitable”).

In Loder, the event was a sponsored event and in Beicht, the event was non-affiliated and unrelated with the entity.

Was the event Felicia Cannon attended an affiliated event of St. Anthony’s? Was the event at St. Anthony’s a church sponsored event?

Other than being called a Christmas party were religious or charitable elements present?

Did invitees pray? Were blessings exchanged before consuming alcohol? If a youtube of this party was compared to a youtube of a party at a private club would there be any difference?

Does St. Anthony’s have 503(c)1 status? Federally funded? State funded?

If the event was NOT affiliated or sponsored the Act does not apply.

Even if the event was affiliated, immunity should not be granted to St. Anthony’s. This event lasted until about 1 am, when police ended the event due to fights; the behavior exhibited at the event was not conducive to the social good, advantageous to the church, or aiding in the advancement of the cultural life of the community. Therefore, the event should be considered outside the very broad and accommodating function the Court has set forth in case law rather than rewarding behavior clearly against the public policy of the Act.

If an organization falls under Charitable Immunity Act, three possible exemptions to immunity; 1) gross negligence or willful or wanton misconduct; 2) employment law claims are not protected by immunity laws; and 3) charitable immunity does not apply in lawsuits alleging sexual abuse.

Illegal behavior and unlicensed alcohol does not bar protection under the Charitable Immunity Act. In Orzech v. Fairleigh Dickinson University, 411 N.J.Super. 198, 985 A.2d 189 (A.D.2009), student's conduct in violating university's alcohol policy by holding a party in dormitory in which alcohol was served to minors did not alter student's status as a beneficiary of university, and thus university was entitled to charitable immunity in family's wrongful death claim against university after student fell out of dormitory window while intoxicated and died.

Source of revenue, fees compared to donations, does not determine charitable status. Auerbach v. Jersey Wahoos Swim, 368 N.J.Super. 403. (App. Div. 2004). However, if non-profit is simply a conduit for governemnt funds such as a quasi-public sponsor of federally funded housing project, (Parker v. St. Stephen's Urban Development Corp., Inc., 243 N.J.Super. 317 (A.D.1990))  was not a private charity entitled to charitable immunity status.

 

Posted by criminal law attorney, Jeffrey Hark

New Jersey Overdose Prevention Act

Read about the recently passed Overdoes Protection Act and how it may impact you if you have recently been charged with a drug crime in New Jersey.

Posted by New Jersey Drug Lawyer, Jeffrey Hark

N.J. Dep’t of Children & Families, Div of Youth & Family Servs. V. I.S. A-81-11

Posted by: New Jersey sex crime defense lawyer, Jeffery Hark

The recent decision in N.J. Dep’t of Children & Families, Div of Youth & Family Servs. V. I.S. A-81-11 by the NJ Supreme Court reversed and affirmed in part the Appellate Division’s decision in upholding the use of Title 9 for the removal of two twins from their biological mother, I.S. The biological mother volunteered to have her daughters placed in a residential care facility however the court could not find a finding of neglect and abuse as required under Title 9, N.J.S.A 9:6-8.21 necessary for the court to have jurisdiction to remove the children.

However under Title 30, N.J.S.A 30:4C-12, there need not be a finding of neglect and abuse to have the children removed. The trial court erred in not dismissing the Title 9 Complaint and instead should have relied on Title 30 for jurisdiction. Title 30 is an acceptable alternative to Title 9 for removal proceedings when there is no abuse or neglect. The trial court’s finding that the children become wards of the state was reasonable and affirmed, however the expansion in direct opposition of the plain language and Legislative intent of Title 9 was reversed.

The Supreme Court did not find an error with the consolidation of the Title 30 actions and the Family Court custody matters. Although Title 30 and custody matters are usually separate, here in this case since the consolidation was harmless, consolidation was not inappropriate.

New Jersey Blood Alcohol Testing Equipment

Published by New Jersey DUI Lawyer, Jeffery Hark
http://www.harklawnj.com/new-jersey-dwi-lawyer/

The equipment used to test drivers for their alcohol level at the 561 police stations around the state of New Jersey, the Alcotest, is to be replaced according to the  state attorney general says in court papers.  Why, after so much controversy??? Because the machine’s manufacturer, Draeger Safety Diagnostics of Irving, Texas, will warranty it for only three more years, a replacement technology will have to be put in place by 2016.  In the meantime, the Attorney General’s Office has asked the Supreme Court to relax the controls on Alcotest that it set down in State v. Chun, 194 N.J. 54 (2008), the seminal ruling that found the device scientifically reliable as evidence in DWI cases.

That would allow the state to devote its resources to finding a new machine.  The state’s disclosure that Alcotest is approaching its “sunset” came after two defense lawyers filed a March 15 motion in aid of litigants’ rights claiming the online database of Alcotest readings, required to be maintained under Chun, is faulty and incomplete.  They also take issue with the state’s fees for use of the database, which range from $5 to 60 depending on number of reports requested and the attorneys have ask the court to order the state to implement a series of revisions to the Alcotest software that were mandated by Chun.

Robyn Mitchell, Deputy Attorney General, concedes that numerous discrepancies exist between the numbers in the online database and the raw data, citing the database’s filtering out of exceptional files. Mitchell describes in detail the technical difficulties the state had in creating the online database.  Mitchell says the state's decision to retire Alcotest comes after it was unable to work with Draeger Safety to make programming revisions that would facilitiate uploading of data from machines in police departments around the state to a centralized database as mandated in Chun.

Draeger hired a software developer, Ayoka Systems, to work on that job. Draeger advised the state in November 2012 that it was not willing to continue employing Ayoka, according to Mitchell. Draeger wanted the state to retain Ayoka or another software company directly, or do the work in-house. But the state lacked the resources to do the work itself and said it would have to put the work out to bid, which would cause a delay of six to nine months.

"In light of Draeger's decision to stop supporting the existing Alcotest 7110 instruments at the end of 2016 and the state's lack of a direct business relationship with Ayoka, the time that it would take [to make the necessary software changes] will likely be comparable to the time it would take to implement a new breath testing program," Mitchell says. "Given that the Alcotest 7110 will become obsolete at the end of 2016, it makes more sense for the state to focus its attention and resources on replacing the Alcotest 7110."

As a result by 2016 the State of New Jersey will be attempting to implement a new breath testing system to replace the Alcotest system that it fought so hard to have implemented only a few years ago.  The Alcotester replaced the 1950 era breathalyzer which was used for over 40 years in New Jersey to convict drivers of DWI and DUI.

State v. DeSantis - Issue Statute of Limitations for Distribution of Illegal Illegal Porn Videos In NJ For a Sex Crimes Prosecution

The New Jersey Appellate Division has reiterated  that the statute of limitations for the prosecutions of distributions of illegal pornography commences on the date the defendant actually distributed same, not the date of the age of the minors or the date the photos were taken.  The child pornography statute specifically reads that the time to prosecute expires, if a victim is below the age of eighteen at the time of the offense, to either five years after the victim attains the age of eighteen or two years after the victim discovers the offense, whichever is later.  In State v. DeSantis, App. Div.  Defendant was indicted and charged with four counts of second-degree endangering the welfare of a child (distribution of child pornography) and fourth-degree endangering the welfare of a child (possession of child pornography). Defendant contends that the trial judge erred by not granting his motion to dismiss the indictment as barred by the statute of limitations period. The appellate panel disagrees. If a victim is below the age of eighteen at the time of the offense, the limitation period expands to either five years after the victim attains the age of eighteen or two years after the victim discovers the offense, whichever is later. Here, the limitations period is five years. The photographs were many years old. The panel does not accept defendant's reading into the statute a limitation provision of two years after discovery by law enforcement officers of the offense. Nor does the panel interpret the statute to measure the limitation period on the age of the actual unknown children depicted.

 

Submitted by Child Pornography Defense Attorney, Jeffrey Hark

         

Capers v. Governor of New Jersey, Third Cir. (per curiam) (8 pp.)

FEDERAL COURT CRIMINAL LAW — CORRECTIONS

Capers v. Governor of New Jersey, Third Cir. (per curiam) (8 pp.)

 

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark

The 3^RD CIRCUIT HAS affirmed the trial court’s dismissal of a  CRIMINAL DEFENDANT’S TRANSFER TO THE Adult Diagnostic and Treatment Center. 

Plaintiff, a state prison inmate, appeals the District Court's dismissal of his complaint asserting violations of his civil rights arising out of his incarceration at the Adult Diagnostic and Treatment Center. The court affirms the dismissal of his claims regarding the posting of his name on the sex offender registry, his transfer to the ADTC, and the denial of his request to be transferred out of the ADTC as barred by the applicable statute of limitations. The dismissal of his Eighth amendment claims of inadequate medical treatment is affirmed because, inter alia, he failed to allege that anyone at the ADTC acted with deliberate indifference to his medical needs. The dismissal of his Fifth Amendment self-incrimination claim is affirmed in part and reversed in part because his allegation that he has lost work credits and special privileges for failing to participate in treatment does not rise to the requisite level of compulsion to state a claim for a Fifth Amendment violation and, to the extent that Capers is seeking damages for already-lost commutation time due to his refusal to participate in treatment, his § 1983 claim is barred by the favorable-termination rule of Heck v. Humphrey, but  to the extent that he seeks an injunction to prevent future losses of commutation time, he might be able to proceed and his complaint provides adequate notice of his claim. [Filed May 7, 2013]  The message to take from this decision, again, based on the long line of cases involving civil commitment and sex offender registry, is that once the defendant pleads guilty and or is found guilty, the court’s imposition of the Megan’s Law’s requirements will not be disturbed by any appellate court and the defendant’s efforts will be denied.

 

Timothy Seidel Denied Bail Reduction in Case Involving Death of Millville Police Officer

Submitted by Jeffrey Hark of the Hark and Hark Law Offices

BRIDGETON — Timothy Seidel, the Commercial Township man charged in connection with the death of Patrolman Christopher Reeves, was denied a reduction in his bail Friday at the Cumberland County Courthouse.

Seidel, 24, of Laurel Lake was indicted on May 8, by a Cumberland County grand jury on two counts of aggravated manslaughter— one, "by fleeing or attempting to elude law, did cause the death of Reeves" and two, "recklessly under circumstances manifesting extreme indifference to human life did cause the death," according to the Cumberland County Prosecutor's Office.

The accident, which occurred early on July 8, 2012, left Patrolman Christopher Reeves, an eight-year veteran of the Millville police department, dead after Timothy Seidel's vehicle collided into Reeves' police cruiser at the intersection of 3rd and Broad streets, killing Reeves on impact.

The accident also left Reeves' partner, Johnathan Seidel (no relation to the accused) with serious injuries.

Assistant Prosecutor Mike Ostrowski's recommended that Seidel's bail not be reduced — which currently stands at $400,000.

Cumberland County Superior Court Judge Darrell Fineman denied Seidel's request for bail to be reduced.

The prosecution also introduced new findings by the State Police Fatal Accident Unit that Seidel was driving 70 mph at the time of impact with Reeves' vehicle. The prosecution also obtained that Seidel's blood alcohol content was .16 at the time of the incident.

Jeffrey Hark of the Cherry Hill firm Hark & Hark represented Seidel.

Seidel remains at the Cumberland County Jail on $400,000 bail cash or bond.

The next hearing is a status conference scheduled for July 22.

As a result of new findings, Ostrowski believes the case against Seidel has become stronger.

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Originally posted by NJ.com staff writer Spencer Kent